Gaetz on Forced Arbitration: "On this Issue, I'm with the Democrats"

September 10, 2019



REP. GAETZ: Thank you Mr. Chairman, and on this issue, I’m with the Democrats. Matter of fact, I think I’m the only Republican in the Congress who is a co-sponsor of this bill, along with my Democratic colleagues. And I don’t say that to bring discomfort to my colleagues in the majority.


I say it to perhaps bring more comfort to my colleagues in the minority that this is an issue where we ought to have broader agreement.


It is my belief that the number one threat to our liberty is big government. It is also my belief that the number two big threat to our liberty is big business, when big business is able to use the apparatus of government to wrap around its objectives. And in this case I am convinced that big business’ overutilization of mandatory arbitration clauses impairs people’s access to something that is fundamentally American, and that is having a judge and jury make a decision regarding your dispute. As a matter of fact, I think this may be the most America-First bill to have been brought forward in the House Judiciary Committee this Congress. Because the ability to go before a jury of your peers, to go before a judge is so important to us thematically as a country that it has been picked into our bill of rights, and I’m well aware of the Supreme Court precedent that has created space for mandatory arbitration, but that doesn’t mean it’s consistent with our values.


Why I think this is so fair, unfair, really relates to the frequency to which the various litigants will be before arbitration panels, and I’ve litigated before arbitration panels, and I’ve litigated before judges, and juries, and here’s kind of the deal.


Before a jury, for most of the juries, they’re unbiased. Right? so they’re gonna see the plaintiff, and the defendant one time, and they’re gonna make a decision on the facts. When you go before an arbitration panel, that arbitration panel is gonna see that Fortune 100 company multiple times that month, dozens of times that year, and they’re gonna see the person, the plaintiff that’s aggrieved, once.


So that creates a fundamental iniquity in the resolution of these disputes that is not consistent with our American beliefs, and principles. And that alone is a reason to disfavor these things. Now I hear the arguments my Republican colleagues make; and they make them absolutely in good faith. That, in a number of cases, arbitration can be cheaper, it can be faster, there can be less discovery, and even in many cases, plaintiffs can do better with ultimate awards in arbitration than in court.


Now, I don’t think that data takes into account all the settlements that occur in court that are likely higher because of the equity of that venue, but irregardless, if people want to choose arbitration they still have that right it is not accurate to say that this bill cuts off access to voluntary arbitration where the group for litigants all want to go to before an arbitration panel to resolve a matter that might have a lower amount in controversy, but it is just unfair to continue to allow business to become so large, and in some circumstances, and then to use the power they have with government officials to be able to undercut the claims that people make, and that they legitimately make.


My friend, Mr. Johnson of Georgia, correctly stated that the ickiest environment in which theses forced arbitration previsions come to bear deal with sexual harassment. One of the ways we’ve been able to beat down the scourge of sexual harassment is to out it, and talk about it, and destigmatize the victims that step forward, but in these arbitration panels often times there is mandatory secrecy. There is constrained discovery, and so the very antidote to the challenges we face are cut off by the people who create the grievance in the first place. And I so appreciate the gentleman for highlighting that.


I’ve met with constituents from my district who have had valid sexual harassment allegations that they deserve to have resolved and when they were forced to these arbitration panels they did not feel as though there was fairness and equity and look not everybody likes the outcome they get. Right?


But at least before a judge, and a jury we have a tried and true method to have greater confidence in that. Mr. Chairman, I thank you for bringing this bill up. I thank the sponsors of it.


REP. JOHNSON: Would the gentleman yield?


REP GAETZ: I Would yield.


REP. JOHNSON: I just want to say that it takes a lot of courage to step away from the herd, to separate yourself from the pack, and do something that you know is in the best interest of society, and it is in the keeping of our constitution, our seventh amendment, which guarantees the right to a jury trial in cases where the amount in controversy exceeds twenty dollars or more. So I appreciate the gentleman’s work on this bill, I appreciate your co-sponsorship, and I look forward to working with you on other matters.


REP. GAETZ: And it is my hope, Mr. chairman, and Mr. Johnson, that the senate will take this bill up. And I make you the commitment that I will personally endeavor to encourage the President to sign it if it makes it to his desk. And I yield back.